Citation Nr: 0327341
Decision Date: 10/10/03 Archive Date: 10/20/03
DOCKET NO. 97-28 847A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Determination of proper initial rating for premenstrual
syndrome with anxiety and nervousness, currently evaluated as
30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Trueba-Sessing, Counsel
INTRODUCTION
The veteran had active service from January 1988 to July
1975.
The case comes before the Board of Veterans' Appeals (Board)
from a January 1996 rating decision of the Department of
Veterans Affairs (VA) Regional Office in Nashville,
Tennessee.
The Board notes that the veteran presented testimony during a
Board hearing held at the RO before the undersigned Veterans
Law Judge (VLJ) in June 2001. A copy of the hearing
transcript is of record.
Additionally, the Board notes that the issue of entitlement
to service connection for chronic lumbar strain, which had
been appealed by the veteran, was granted in a February 2003
rating decision and was assigned a 10 percent rating
effective July 4, 1995, the day following the veteran's
discharge from service. Hence, the issue of service
connection for chronic lumbar strain is no longer on appeal
as a full grant of the benefit sought is in effect.
Furthermore, the October 1997 substantive appeal also
perfected the issue of entitlement to service connection for
heat stress. However, in a January 2001 statement, the
appellant clearly indicated that she wanted to "drop" this
issue. See 38 C.F.R. § 20.204 (2003). Subsequently, during
the June 2001 VLJ hearing, she rendering testimony regarding
this issue. The Board has construed her testimony as an
attempt to reopen the claim. Therefore, the issue of service
connection for heat stress is referred to the RO for further
consideration and/or action as maybe appropriate.
REMAND
During the pendency of this appeal, on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126 (West 2002). In substance, the VCAA provides that
VA shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate his or her claim
for benefits under the laws administered by VA. In pertinent
part, this law redefines the obligations of VA with respect
to the duty to assist. The provisions of the VCAA apply to
all claims for VA benefits.
VA issued regulations to implement the VCAA in August 2001.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The
amendments became effective on November 9, 2000, except for
the amendment to 38 C.F.R. § 3.156(a), which became effective
August 29, 2001. Except for the amendment to 38 C.F.R.
§ 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and
38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions
of this rule merely implement the VCAA, and do not provide
any rights other than those provided in the VCAA." 66 Fed.
Reg. 45,629. Accordingly, where the record demonstrates that
the statutory mandates have been satisfied, the regulatory
provisions are likewise satisfied.
Pursuant to the VCAA, VA first has a duty to notify the
claimant and his/her representative of any information and
evidence necessary to substantiate the claim for VA benefits.
See generally 38 U.S.C.A. §§ 5102, 5103 (West 2002); 66 Fed.
Reg. 45,620, 45,630 (Aug. 29, 2001) (codified as amended at
38 C.F.R. § 3.159(b)). Further, the VA has a duty to assist
the claimant in obtaining evidence necessary to substantiate
the claim, although the ultimate responsibility for
furnishing evidence rests with the claimant. See 38 U.S.C.A.
§ 5103A (West 2002); 66 Fed. Reg. 46,620, 45,630 (Aug. 29,
2001) (codified as amended at 38 C.F.R. § 3.159(c)). In the
present case, the Board finds that the VA's redefined duties
to notify and assist a claimant, as set forth in the VCAA,
have not been fulfilled regarding the issue of determination
of proper initial rating for premenstrual syndrome with
anxiety and nervousness, currently evaluated as 10 percent
disabling. For the below described reasons, the case is
remanded to the RO for additional development.
Moreover, in a decision promulgated on September 22, 2003,
Paralyzed Veterans of America v. Secretary of Veterans
Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept.
22, 2003), the United States Court of Appeals for the Federal
Circuit invalidated the 30-day response period contained in
38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§
5103(b)(1). The Court made a conclusion similar to the one
reached in Disabled Am. Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a
related Board regulation, 38 C.F.R. § 19.9). The court found
that the 30-day period provided in § 3.159(b)(1) to respond
to a VCCA duty to notify is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. Therefore,
since this case is being remanded for additional development
or to cure a procedural defect, the RO must take this
opportunity to inform the appellant that notwithstanding the
information previously provided, a full year is allowed to
respond to a VCAA notice.
As to the additional development, during the June 2001 VLJ
hearing, the appellant testified that she has been treated
for the service connected premenstrual syndrome with anxiety
and nervousness by Dr. Amanda Ryder, a counselor from the
University of Tennessee at Martin, and Dr. Levy. These
treatment records do not appear to be included within the
claims file, and thus, the RO should obtain the appropriate
releases of information and attempt to obtain these records.
Therefore, in light of the foregoing, and in order to fairly
and fully adjudicate the veteran's case, the RO should
perform the following development:
1. The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, No. 02-
7007, -7008, -7009, -7010 (Fed. Cir.
Sept. 22, 2003), and any other applicable
legal precedent.
2. The RO should further ensure
compliance with the duty to assist,
documentation and notification
requirements set forth by the Veterans
Claims Assistance Act (VCAA),
specifically including all provisions
under 38 U.S.C.A. §§ 5102, 5103, 5103A
(West 2002); 66 Fed. Reg. 45,620 (Aug.
29, 2001) (codified as amended at 38
C.F.R. § 3.102, 3.156(a), 3.159 and
3.326(a)), as well as the holdings in
Quartuccio v. Principi, 16 Vet. App. 183
(2002) and Charles v. Principi, 16 Vet.
App. 370 (2002). The claims file must
include documentation that there has been
compliance with the VA's redefined duties
to notify and assist a claimant as set
forth in the VCAA and as specifically
affecting the issue of determination of
proper initial rating for premenstrual
syndrome with anxiety and nervousness,
currently evaluated as 10 percent
disabling.
3. During the June 2001 VLJ hearing, the
veteran testified that she was been
treated for her premenstrual syndrome
disability by Dr. Amanda Ryder, a
counselor from the University of
Tennessee at Martin, and Dr. Levy. The
RO should provide the veteran with
release of information forms and ask that
a copy be signed and returned for each
health care provider identified. Once
the veteran responds, then the RO should
make an appropriate attempt obtain
records from each health care provider
identified by the veteran (except where
VA has already made reasonable efforts to
obtain the records from a particular
provider). If these records cannot be
obtained and there is no affirmative
evidence that they do not exist, inform
the veteran of the records that the RO
was unable to obtain, including what
efforts were made to obtain them. Also
inform the veteran that adjudication of
the claim will be continued without these
records unless she is able to submit
them. The veteran should be afforded an
appropriate period of time within which
to respond. Furthermore, the veteran
should be specifically informed as to
what portion of evidence she is
required/expected to submit, and which
portion of the evidence the VA would
attempt to obtain in order to assist the
veteran in substantiating her claim, per
38 U.S.C.A. §§ 5103(a), 5103A;
Quartuccio, supra; Charles, supra.
4. Thereafter, the RO must review the
claims folder and ensure that all of the
foregoing development efforts have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Remand instructions of the Board are
neither optional nor discretionary. Full
compliance with such instructions is
mandated by law, per Stegall v. West, 11
Vet. App. 268 (1998).
5. After completion of the above, the RO
should readjudicate the issue of
determination of proper initial rating
for premenstrual syndrome with anxiety
and nervousness, currently evaluated as
30 percent disabling. The RO should
specifically consider all applicable
criteria, including 38 C.F.R. § 4.116,
Diagnostic Code 7615 (2003); 38 C.F.R.
§ 4.130, Diagnostic Code 9400 (as
effective prior to and as of November 7,
1996); and the holdings in Fenderson v.
West, 12 Vet. App. 119 (1999); and
Mittleider v. West, 11 Vet. App. 181
(1998) (when it is not possible to
separate the effects of the service-
connected condition from a nonservice-
connected condition, 38 C.F.R. § 3.102
clearly dictates that such signs and
symptoms be attributed to the service-
connected condition). On readjudication,
the RO should also document consideration
of referring the service-connected
premenstrual syndrome with anxiety and
nervousness for extraschedular evaluation
under 38 C.F.R. § 3.321(b)(1).
6. If the determination remains
unfavorable in any way, the appellant and
her representative, if any, should be
provided with a supplemental statement of
the case and afforded an opportunity to
respond before the case is returned to
the Board for further review.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion as to the outcome of this case.
The appellant need take no action until so informed. The
purpose of this REMAND is to ensure compliance with due
process considerations.
The appellant is free to submit any additional evidence she
desires to have considered in connection with the current
appeal. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
No further action is required of the appellant until she is
notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).